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March 31, 2014


I love the snark, but it's over for Myriad and its ilk. It's been over for a long time, and certainly well before Judge Shelby's order. At this point I am reminded of a certain quote by Colonel Nathan R. Jessup after being told by Lieutenant Daniel Kaffee "I want the truth"....

No, Gary, it's not. Myriad just means that, in future, "hoarding" diagnostically relevant mutations will be the only way to protect such a company's investment. We will see if that makes people happier than what has transpired during the Myriad era. Let's see if you can handle that truth.

And, for the record, BCD is one of the more thoughtful people working in this area and has actually contributed more than simple philosophical opposition to Myriad.

"Dr. Cook-Deegan further attempts to implicate the government's rights in the BRCA genes (stemming from National Institute of Health support for the basic genetic research underlying discovery of the BRCA genes)."


Bob actually suggested that Bayh-Dole "march-in-rights" are in play here in Myriad? With all due respect, Bob has completely misinterpreted this "march-in-rights" provision of Bayh-Dole, as have some others. If Bob doesn't believe me, he should talk to Joe Allen (a legislative aid for Birch Bayh) who was intimately involved in the Bayh-Dole legislation, and would tell Bob that any belief by Bob that "march-in-rights" are in play here in Myriad is utter nonsense.

If the argument for 102(g) invalidity centers on work by a team of BRITISH inventors, how is the challenger going to get over the "in this country" part of 102(g). The allegedly anticipating activity is supposed to have taken place in 1994-95. Evidence of invention in a WTO country is admissible for 102(g) AFTER 1 Jan 1996, but if I am understanding correctly, that sort of evidence would already be too late because Myriad filed in 1995, showing that they had already invented by then.

I gather that these British inventors had an American collaborator at Duke, and I suppose that evidence of his contribution to the invention is admissible. However, the fact that he is only a CO-inventor tells me that his own work is not going to amount to enough, by itself, to anticipate.

In other words, how exactly is this 102(g) argument supposed to succeed? Did the British group convey their ideas to the American collaborator, and he reduced them to practice in North Carolina (like the recent Solvay v Honeywell decision)?

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